Fifty-three workers' compensation bills
were filed during the 2003 legislative session. The legislature
passed 12 bills with workers' compensation as the main topic. Of
primary interest to most physicians were two bills that did not
pass - House Bill 1896 and HB 3285.
WORKERS' COMPENSATION FEES
On April 25, 2002, The Texas Workers'
Compensation Commission (TWCC) adopted medical fee guidelines at
125 percent of the Medicare fee schedule. TMA sued to temporarily
enjoin the fee guidelines from taking effect. Although the TMA
lawsuit kept the new fees from going into effect during the
legislative session, the association worked to pass HB 3285
(discussed below) and to negotiate a fee solution in HB 1896 to
restore reasonable physician fees.
On Feb. 5, the governor's chief of staff
organized the first in a series of stakeholder talks in an
attempt to resolve the medical fee guideline controversy and
other issues through legislative means. A matter of concern to
the insurance carriers and the Texas Association of Business
(TAB) was enacting some type of employer direction of care for
its injured employees to help solve the enormously costly
overutilization crisis in Texas. Currently, injured employees in
Texas can choose any provider (including a chiropractor) to be
their treating doctor and may change providers as many times as
they want. To control overutilization, the largest cost driver in
the comp system, TAB and the carriers wanted to pass legislation
allowing businesses to offer their employees providers they
believe will not over utilize. The governor's office strongly
encouraged TMA to join the Texas Hospital Association, TAB, and
the carriers in negotiations that might produce networks to help
control utilization in exchange for more reasonable physician
fees and a reduction in administrative burdens in the workers'
compensation system. These negotiations revolved around a
"placeholder" bill labeled HB 1896.
HB 1896 was filed by Rep. Phil King
(R-Weatherford) and originally supported in the Senate by Sen.
John Carona (R-Dallas). With strong encouragement from the
governor's office, negotiation regarding HB 1896 began when TAB
and a group of insurance carriers stated that the proposed
networks would not be the typical managed care networks (i.e.,
designed simply to get market share and drive down provider
fees). Instead, the networks would sign up providers who the
carriers believe are not overutilizers and then monitor their
utilization. Because these providers would be those chosen,
trusted, and monitored by the networks, the carriers said that
they would not impose many of the unnecessary administrative
burdens found in the TWCC system and would pay the providers fair
and reasonable fees.
TMA estimated that an "agreed-to" bill
supported by the governor containing fee and administrative
burden relieve for physicians had a much better chance of
becoming law than our back-up bill (HB 3285); therefore, TMA
fully committed to the HB 1896 discussions in the best of faith.
For well over two months, TMA was in constant negotiations to
come up with a satisfactory agreed-to bill. Four TMA physician
members and three office managers regularly took time away from
their practices and communities during this time to assist in the
negotiations. Also during this period, one TMA staff member
worked this issue almost full time, and five others contributed a
considerable amount of time.
Unfortunately, TMA and the other parties
could not reach a mutually agreeable bill. TMA finally pulled out
the negotiations when it became clear that it would not be
possible to secure adequate safeguards for injured workers,
assure reductions in administrative burdens, and enact sufficient
fee protections for in-network physicians.
Meanwhile, in response to TWCC's adoption
of a severely reduced medical fee guideline, TMA sought passage
of HB 3285, authored by Rep. Trey Martinez-Fischer (D-San
Antonio). HB 3285 would have locked the current TWCC fee schedule
at a budget-neutral level and more appropriately distributed
payments among the major specialties that participate in the comp
system. TWCC is mandated to update the medical fee guideline
every two years; however, it has updated it successfully only
twice in the last 12 years. A formula for the medical fee
guideline would allow the commission to consistently set fees
with explicable, defendable rationale free from charges of
bias.
TMA maintained throughout the session that
without immediate action by the Texas Legislature, workers'
compensation in Texas could be headed for a crisis that would
require a great deal of future legislative intervention and
create a complex and adversarial sunset process. HB 3285 and its
subsequent committee substitute were designed to provide a bridge
to the interim, when all of the major stakeholders could have
worked together under the guidance of the sunset process to
develop a formula that is both fair and reasonable.
Despite massive opposition from the Texas
Association of Business, carriers, chiropractors and others, HB
3285 was voted unanimously out of the House Committee on Business
and Industry. Unfortunately, it died in the House Calendars
Committee when the House lost its quorum in the waning days of
the session.
An effort to revive HB 3285 was made late
in the session. Sen. John Carona (R-Dallas) offered an amendment
to HB 833 (relating to certain pharmaceutical services for an
injured employee receiving workers' compensation medical
benefits) that proposed creating the same budget-neutral fee
schedule outlined in HB 3285. Sen. Kyle Janek, MD, (R-Houston),
HB 833's senate sponsor, agreed to accept the amendment and
argued on its behalf. The TMA-endorsed amendment failed adoption
by a tie vote of 14-14.
Despite HB 3285's failure, TMA and the
specialty societies that participate in the comp system have
committed to continuing to educate legislators about the need to
address the real causes of soaring costs of workers' compensation
coverage. High utilization, as opposed to prices for health care
services, is cited as the principle cost driver in the comp
system.
According to a Workers Compensation
Research Institute (WCRI) report released in 2002, cost per claim
(the total number of treatments for an injury) for Texas is
higher
than the median for other states, but the payment per service
(physician's fee) is
lower
than the median.
After analyzing the WCRI studies, Texas'
own Research and Oversight Council on Workers' Compensation (ROC)
concluded: "It is the amount of medical treatment provided to
injured workers that is the driving force in higher medical costs
rather than the price of individual medical treatments and
services." ROC and WCRI data demonstrate that cuts in physician
fees result in increases in utilization. In fact, inadequate fees
may explain current high utilization in Texas.
Other Workers' Compensation Bills of
Possible Interest
HB 145 by Rep. Burt R. Solomons
(R-Carrollton) will allow TWCC to file a lawsuit to enforce a
TWCC interlocutory order, final order, or decision when a party
refuses or fails to comply with the order or decision. The bill
will entitle TWCC to reasonable attorney fees and costs for
prosecution and collection of the claim. Injured employees will
be entitled to a penalty equal to 12 percent of the amount of
benefits recovered in the judgment, interest, and reasonable
attorney fees for the prosecution and collection of their claim.
HB 145 includes a provision that will require a party seeking
judicial review of a TWCC decision to provide TWCC and any
opposing party with written notice of the lawsuit. Failure to
provide written notice to TWCC will prevent the party from
pursuing judicial review.
Under current law, only a claimant may sue
an insurance carrier to enforce compliance with a final order or
decision rendered by TWCC. Current law also provides for an
administrative penalty for failure to comply with an order from
TWCC. These provisions may not be effective due to delays and
litigation costs the claimant incurs and the lack of enforcement
by the court system.
This measure should affect insurance
carriers much more than physicians. It will give TWCC more
defined powers to enforce its sanctions against carriers that, in
many instances, would benefit physicians; however, the
requirement that a private claimant notify TWCC of any judicial
review is just an added burden to system participants. The new
law also should provide injured worker claimants a financial
incentive to petition the court to enforce TWCC's rulings.
HB 2095 by Rep. Robert L. "Robby" Cook
(D-Eagle Lake) allows an unincorporated association or business
trust composed of five or more private employers to establish a
workers' compensation self-insurance group. The employers must be
engaged in the same or similar type of business; be members of a
bona fide trade or professional association that has been in
existence for at least five years before the establishment of the
group; and be entered into agreements to pool their liabilities
for workers' compensation benefits and employers' liability in
this state. Although further examination is needed, this new law
could allow TMA to sponsor more affordable workers' compensation
insurance to its member physicians.
HB 2198 by Representative Solomons
addresses the Fulton court decision and relates to the
certification of maximum medical improvement and the impairment
rating assigned to an employee in a claim for workers'
compensation benefits. This bill makes the first valid assignment
of impairment rating to an employee final if the certification of
maximum medical improvement and/or the assigned impairment rating
is not disputed within 90 days of written notification provided
to the claimant and the carrier through verifiable
methods.
HB 2199 by Representative Solomons extends
the time for an insurer to begin payments or notify the injured
employee and TWCC of the carrier's refusal to pay from seven to
15 days. The new law further provides that an insurer's
noncompliance does not waive the right to contest compensability
but rather commits an administrative violation.
HB 3168, Rep. Helen Giddings (D-De Soto),
mandates that TWCC study new alternate dispute resolution
processes. The new processes are to be for medical services
costing less than the cost of a medical necessity review by an
independent review organization (IRO). This bill contains
language that also pertains to the certification of maximum
medical improvement and the impairment rating assigned to an
employee in a claim for workers' compensation benefits.
Senate Bill 478, Sen. Robert Duncan
(R-Lubbock), excludes from workers' comp coverage persons who
perform services that may benefit a political subdivision or are
employed by or under contract with a performer providing those
services but do not receive payment from the political
subdivision for the performance of the services, if said services
are performed in connection with the operation or production of
one of the enumerated professions. These professions include: a
stock show; a rodeo; a carnival; a circus; a musical, vocal, or
theatrical performance; a professional baseball league or game; a
professional hockey league or game; a wrestling event or match; a
vehicle or motorcycle event; or another entertainment
event.
SB 1572 by Senator Carona allows TWCC to
adopt individual treatment protocols. The bill also allows TWCC
to adopt scientifically valid and outcome-based treatment
guidelines or protocols that are not recognized nationally when
national guidelines or protocols are not available.
SB 1574 by Senator Carona provides that a
person who serves on the medical quality review panel is immune
from suit and from civil liability for an act performed, or a
recommendation made, within the scope of the person's functions
as a member of the panel if the person acts without malice and in
the reasonable belief that the action or recommendation is
warranted by the known facts. In the event of a civil action
brought against a panel member that arises from the person's
participation on the panel, the member is entitled to the same
protections afforded a TWCC commissioner.
SB 1574 also allows TWCC to share
confidential information to which access otherwise is prohibited
with the Texas State Board of Medical Examiners (TSBME) or the
Texas Board of Chiropractic Examiners (TBCE), and vice versa.
Information shared between TWCC and either of these agencies is
to be confidential. Furthermore, if TWCC or TSBME discovers an
act or omission by a physician that may constitute a felony, a
misdemeanor involving moral turpitude, a violation of state or
federal narcotics or controlled substance law, an offense
involving fraud or abuse under the Medicare or Medicaid program,
or a violation of this subtitle, the agency shall report that act
or omission to the other agency; this stipulation also apples to
TWCC and TBCE.
SB 1804, Sen. Chris Harris (R-Arlington),
states that TWCC may not prohibit an insurance carrier and a
health care provider from voluntarily discussing pharmaceutical
services and may not prohibit an insurance carrier from
certifying or agreeing to pay for health care consistent with
those agreements. The bill makes a carrier liable for health care
treatment and treatment plans and pharmaceutical services that
are preauthorized voluntarily and prohibits insurers from
disputing the certified or preauthorized health care treatment
and treatment plans and pharmaceutical services at a later
date.
The bill also amends Section 413.031 of the
Texas Labor Code by requiring an independent review organization
that is performing a review of medical necessity of disputed
health care treatment under the provisions of Section 413.031 to
consider TWCC's health care reimbursement policies and guidelines
adopted under Section 413.011 if those policies and guidelines
are raised by one of the parties to the dispute.
SB 1804 provides that if an IRO's decision
is contrary to the relevant TWCC policies or guidelines, the IRO
must indicate in the decision the specific basis for its
divergence in the review of medical necessity. The bill includes
language that states an IRO is not prohibited from considering
and applying the relevant payment policies in any dispute,
regardless of whether those policies are raised by a party to the
dispute.
Workers' compensation TMA staff
contacts:
-Rich Johnson, director, Division
of Medical Economics, (512) 370-1315
-Donna Kinney, manager, Regulatory Analysis and Advocacy,
(512) 370-1422
-C.J. Francisco, JD, senior counsel, Office of the
General Counsel, (512) 370-1339
|
[
Overview
|
Professional Liability Reform
|
Patient Safety/Quality Improvement
|
Managed Care/Insurance Reform
|
Health Care Funding
|
Health and Human Services
Reorganization
|
Scope of Practice
|
Public Health
|
Rural Health
|
Mental Health
|
Medical Science
|
Tax Reform
|
Long-Term Care
|
Workforce/Medical Education
|
Abortion and Related Legislation
|
Health Facility Regulation
|
Transplantation/Organ Donation
]